Citation Nr: 1020294
Decision Date: 06/02/10 Archive Date: 06/10/10
DOCKET NO. 06-10 880 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUE
Entitlement to an initial rating in excess of 50 percent
for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Heather M. Gogola, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1953 to April
1955.
This matter is before the Board of Veterans' Appeals
(Board) on appeal from a rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Little
Rock, Arkansas.
In November 2007 the Veteran was afforded a
videoconference hearing before the undersigned Veterans
Law Judge. A transcript of that proceeding is of record.
The Board notes that the Veteran's original claim was
previously remanded to the RO via the Appeals Management
Center (AMC) for further development per a Board decision
dated April 2008. A July 2009 Board decision denied the
Veteran's claim for an initial rating in excess of 50
percent for PTSD.
The Veteran appealed to the United States Court of Appeals
for Veterans Claims (Court). In December 2009, the Court
granted a Joint Motion to Remand.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. Prior to November 5, 2007, the Veteran's PTSD is
manifested by moderate disruption of occupational and
social adaptability that more nearly approximates that of
impairment with reduced reliability and productivity and
difficulty in establishing and maintaining effective work
and social relationships.
2. From November 5, 2007, the Veteran's PTSD is
manifested by occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking or mood.
CONCLUSIONS OF LAW
1. Prior to November 5, 2007, the criteria for a rating
in excess of 50 percent for PTSD have not been met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.159, 4.1, 4.126, 4.130, Diagnostic
Code 9411 (2009).
2. From November 5, 2007, the criteria for the assignment
of a rating of 70 percent, but not higher, for the
service-connected PTSD have been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 4.1, 4.126, 4.130, Diagnostic Code 9411
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA),
codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A
(West 2002 & Supp. 2009), and the pertinent implementing
regulation, codified at 38 C.F.R. § 3.159 (2009), provide
that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in
substantiating the claim. They also require VA to notify
the claimant and the claimant's representative, if any, of
any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part,
if any, VA will attempt to obtain on behalf of the
claimant.
The Board also notes that the United States Court of
Appeals for Veterans Claims (Court) has held that the
plain language of 38 U.S.C.A. § 5103(a) requires that
notice to a claimant pursuant to the VCAA be provided "at
the time" that, or "immediately after," VA receives a
complete or substantially complete application for VA-
administered benefits. Pelegrini v. Principi, 18 Vet.
App. 112, 119 (2004). The Court further held that VA
failed to demonstrate that "lack of such a pre-AOJ-
decision notice was not prejudicial to the appellant, see
38 U.S.C. § 7261(b)(2) (as amended by the Veterans
Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116
Stat. 2820, 2832) (providing that '[i]n making the
determinations under [section 7261(a)], the Court
shall...take due account of the rule of prejudicial
error')."
The timing requirement enunciated in Pelegrini applies
equally to the initial-disability-rating and effective-
date elements of a service-connection claim. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
Background
By a rating decision dated February 2004, the RO granted
service connection for PTSD and assigned a 10 percent
rating, effective January 7, 2000. The Veteran appealed
the decision, asserting that his disability warranted a
higher rating. A September 2005 rating decision granted
an increased rating of 50 percent for PTSD, effective
January 7, 2000. The Veteran chose to continue his appeal
asserting that his disability warranted a still-higher
rating.
In April 2008, the Board remanded the Veteran's claim for
further development and in its July 2009 decision, the
Board denied the Veteran's claim for an initial rating in
excess of 50 percent for PTSD. The Veteran appealed to
the Court and in December 2009, the Court issued a Joint
Motion for Remand. In its Joint Motion, the Court found
that the December 2009 Board decision discounted
symptomatology of suicidal ideation, and the Global
Assessment of Functioning (GAF) scores provided. The
Board also was found to have not addressed the January
2009 VA examiner's conclusions that the Veteran had daily
severe symptoms that had persisted for many years. Thus
the Court remanded the Veteran's claim for an adequate
discussion of the above-mentioned medical evidence.
The claims file contains treatment records from the Vet
Center dated January 2000 to May 2000. On a mental status
examination, the Veteran's appearance was neat, manner
friendly and cooperative, speech appropriate, memory
function normal, affect appropriate, his motor activity
relaxed and at ease, and his judgment fair. In addition,
he was oriented to time, place and person. The Veteran
did not have any delusions, disorganized thinking or
hallucinations. He had severe sleep disturbance and a low
energy level. The Veteran had been told by his wife that
he shook in his sleep and he felt like he was "down and
out." At February 2000 follow up treatment the Veteran
said that he had problems with depression and intrusive
thoughts. He tried to avoid memories of his military
experience but they would "sneak in anyways."
In an April 2000 VA treatment record, the Veteran endorsed
symptoms including sleep disturbance with occasional
nightmares, intrusive thoughts, flashbacks with reminders,
and depressed/irritable mood state with anhedonia. The
symptoms were chronic and had possibly worsened over the
last several years. The VA staff psychiatrist noted that
the Veteran was appropriately dressed and groomed with
fair eye contact, had moderately slowed psychomotor
activity, and had no abnormal movements. His speech was
slightly slowed, his mood was fair, and his affect fair
and slightly restricted, but appropriate. His thoughts
were logical and goal directed, and there was no psychosis
or suicidal ideation noted.
At the time of June 2000 VA treatment, the Veteran
appeared significantly depressed. His reported low
appetite but stated that his sleep was improving on
Zolpidem. The Veteran felt sad, poorly motivated,
lethargic, and hopeless at times. He had frequent
intrusive thoughts, and occasional flashbacks, but no
suicidal thoughts or homicidal ideation. An August 2000
treatment record indicated that the Veteran reported a
partial response with erratic compliance on bupropion and
Zolpidem. Dr. K. believed that the Veteran met the
criteria for major depression and PTSD. The Veteran
reported intrusive thoughts and restless sleep at May 2001
VA treatment.
Vet Center treatment records dated from September 2001 to
August 2002 noted that the Veteran was experiencing
memories of Korea that had been triggered by the recent
terrorist attacks. Treatment records showed that the
Veteran endorsed symptoms of nightmares, intrusive
thoughts, flashbacks, emotional numbing, and diminished
libido. In March 2002 he said that cold weather was a
trigger for intrusive memories of Korea. In a May 2002
record, the Veteran's VA doctor stated that the Veteran's
highest recorded GAF score was 60 and that his lowest
recorded GAF score was 45. An August 2002 treatment
record noted that the Veteran reported anger related to
his Korean War experiences but indicated that he enjoyed
family contact.
In a July 2003 VA treatment record, the Veteran indicated
that he spent time with his grandchildren. His sleep was
poor but his mood was fairly good. Overall the outpatient
records throughout 2003 show interrupted sleep but note
that the Veteran was socializing, had appropriate
appearance, and had no psychoses or suicidal ideation.
The Veteran was afforded a VA examination in November 2003
at which he described his functioning as "just not like
normal." He complained of sleep problems, frequent
nightmares that included incidents from Korea, and
intrusive thoughts of friends who were injured. The
Veteran was easily startled by loud noises, but reported
that he did fairly well in crowds. He stated that if he
went to a restaurant by himself, he would sit in a corner.
He also had no interest in watching war movies. The
Veteran reported that he was separated from his wife of 46
years and said that a lot of his behavior contributed to
his wife wanting to leave him.
Mental status examination revealed that the Veteran's
speech was within normal limits with regard to rate and
rhythm, his eye contact was limited, his mood was somewhat
dysphoric, and his affect was appropriate to contact.
Additionally, his thought processes and associations were
logical and tight, no loosening of associations were
noted, and there was not any confusion. No gross
impairment in memory was observed, and he was oriented in
all spheres. The Veteran did not complain of
hallucinations and no delusional material was noted during
the examination. Finally, the Veteran's insight and
judgment were adequate and he denied suicidal or homicidal
ideation. A GAF score of 45 was assigned.
VA outpatient records dated in 2004 continue to reflect
complaints of sleep disturbance. A February 2004
treatment record indicated that the Veteran reported that
nothing was fun or exciting any more. He was not
psychotic or suicidal, however, and his dress and grooming
were appropriate.
The Veteran was afforded another VA examination in August
2005, at which time he reported that he was not doing too
well, that he was sleeping poorly, and that he had
nightmares virtually every night that sometimes involved
his military service. The Veteran had intrusive thoughts
about the war if he did not keep busy. He was sometimes
uncomfortable in crowds and at other times he could handle
them. The Veteran went to restaurants with his daughter,
went to large stores but tried to get in and out quickly,
attended his grandchildren's sporting events, and did not
like war movies because of the memories they brought back.
Mental status examination revealed some dysphoria and
depressed mood. Speech was within normal limits with
regard to rate and rhythm and affect was appropriate to
content. The Veteran's thought processes and associations
were logical and tight and no loosening of associations or
confusion were noted. His memory was grossly intact, he
was oriented to all spheres, he did not report
hallucinations, and no delusions were noted. Insight and
judgment were adequate and the Veteran denied suicidal and
homicidal ideation. The examiner did not feel that there
would be a significant change in the Veteran's functioning
over the next six to 12 months and he did not find
evidence that his PTSD symptoms precluded employment.
Furthermore, the examiner noted that the Veteran did not
report significant impairment in social functioning, and
there was no impairment in thought processing or
communication. The Veteran was diagnosed with PTSD,
chronic, and a GAF score of 46 was assigned.
In an October 2005 letter, a VA treating psychiatrist
wrote that the Veteran continued to be symptomatic with
PTSD and that the condition had reportedly worsened over
time. In March 2007, the VA psychiatrist wrote that the
Veteran continued to be followed in the PTSD clinic. The
Veteran had had several pharmacotherapy trials but
reported a worsening of his chronic PTSD symptoms. In
addition, the Veteran reported that financial stressors
were resulting in a worsening of his chronic dysphoric
mood.
The Veteran testified at his November 2007 Board hearing
that discussing his experiences in Korea caused his
symptoms to increase. Furthermore, his nightmares and
flashbacks had an adverse affect on his marriage, and he
and his wife were still separated. The Veteran did not go
to church as much as he used to because he did not like
the crowds, and 80 to 90 percent of the week he wanted to
be alone. He also reported occasional panic attacks.
A May 8, 2008 letter written by the Veteran's VA
psychiatrist noted his worsening sleep, mood state,
concentration and isolation. Additionally, he had a
worsening of his general health that impacted his mood.
The Veteran was afforded another VA examination in January
2009 at which time he complained of difficulty sleeping,
which included nightmares that occurred virtually every
night. He also reported intrusive thoughts on a daily
basis, many of which involved friends getting hurt. The
Veteran rarely went out to eat because of his discomfort
in crowds and his financial situation. His daughter
shopped for him, he did not watch war movies, and he tried
avoid contact with Koreans.
Mental status examination revealed some dysphoria and mood
was somewhat depressed. Thought processes and
associations were logical and tight and there was no
loosening of associations or confusion. The Veteran was
generally oriented to person and place but did not know
the exact date, gave the year as 2008, and could not name
the current president, governor, or their predecessors.
No delusions were noted and the Veteran did not have any
hallucinations. The Veteran reported suicidal and
homicidal ideation but denied any intent. It was
concluded that his symptoms occurred daily, were severe,
and have persisted for many years, but were not found to
preclude employment or activities of daily living. A GAF
score of 43 was assigned.
Analysis
Disability evaluations are determined by the application
of the Schedule For Rating Disabilities, which assigns
ratings based on the average impairment of earning
capacity resulting from a service-connected disability.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a
question as to which of two evaluations shall be applied,
the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for
that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any
changes in condition, it is necessary to consider the
complete medical history of the Veteran's condition.
Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). Where
a Veteran has expressed dissatisfaction with the
assignment of an initial rating following an initial award
of service connection for that disability, separate
ratings can be assigned for separate periods of time based
on the facts found-a practice known as "staged" ratings.
Fenderson v. West, 12 Vet. App. 119 (1999). The analysis
in the following decision is therefore undertaken with
consideration of the possibility that different ratings
may be warranted for different time periods.
When evaluating a mental disorder, the VA must consider
the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the claimant's
capacity for adjustment during periods of remission. VA
shall assign an evaluation based on all the evidence of
record that bears on occupational and social impairment
rather than solely on the examiner's assessment of the
level of disability at the moment of the examination.
38 C.F.R. § 4.126(a). When evaluating the level of
disability from a mental disorder, the VA will consider
the extent of social impairment, but shall not assign an
evaluation solely on the basis of social impairment.
38 C.F.R. § 4.126(b).
Under 38 C.F.R. § 4.130, Diagnostic Code 9411, PTSD is
rated under the General Rating Formula for Mental
Disorders.
A 50 percent evaluation is warranted for occupational and
social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech;
panic attacks more than once a week; difficulty in
understanding complex commands; impairment of short- and
long-term memory (e.g., retention of only highly learned
material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
A 70 percent evaluation is warranted for occupational and
social impairment, with deficiencies in most areas, such
as work, school, family relations, judgment, thinking or
mood, due to symptoms such as: suicidal ideation;
obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting
the ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance or hygiene;
difficulty in adapting to stressful circumstances
(including work or a work-like setting); inability to
establish and maintain effective relationships.
A 100 percent evaluation is warranted for total
occupational and social impairment, due to symptoms such
as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of
hurting himself or others; intermittent inability to
perform activities of daily living (including maintenance
of minimal personal hygiene); disorientation to time or
place; memory loss for names of close relatives, own
occupation, or own name.
Throughout the rating period on appeal, the Veteran's PTSD
with depression has been rated as 50 percent disabling,
pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411.
Review of the medical evidence of record shows that the
Veteran's PTSD was characterized primarily by complaints
of difficulty sleeping, flashbacks, nightmares, intrusive
thoughts, avoidance, intolerance of crowds, easy startle
reactions, depression, and isolation. Additionally, the
Veteran reported that while he went to restaurants, he
needed to sit in a corner, and while he could tolerate
large stores, he tried to leave quickly. Further, at his
November 2003 VA examination, the Veteran reported that he
was separated from his wife of 46 years, and that a lot of
his behavior had contributed to her leaving him. The
August 2005 VA examiner noted that it was unlikely that
there would be a significant change in the Veteran's
functioning over the next six to twelve months, and
further opined that the Veteran's PTSD symptoms did not
preclude employment.
Repeated examinations revealed no evidence of flattened
affect; impaired judgment; impaired abstract thinking;
obsessional rituals; speech intermittently illogical,
obscure, or irrelevant; impaired impulse control (such as
unprovoked irritability with periods of violence); spatial
disorientation; or neglect of personal appearance or
hygiene.
However, the Veteran's hearing testimony dated November 5,
2007, is found to establish entitlement to the next-higher
70 percent evaluation. Indeed, at that time he testified
as to wanting to be alone 80 to 90 percent of the time.
He remarked that he attended church less frequently to
avoid being around people. Therefore, such testimony
demonstrates an inability to establish and maintain
effective relationships. As such symptomatology appears
to be a significant component of the Veteran's PTSD
disability picture, this is found to justify assignment of
a 70 percent rating from this point forward. It is noted
that earlier evidence of record, to include the August
2005 VA examination, showed a greater ability to maintain
relationships. Indeed, the August 2005 VA examination
report noted that the Veteran ate in restaurants with his
daughter and would go to large stores, albeit with the aim
of shopping quickly and leaving as soon as possible. He
also attended his grandchildren's sporting events. Thus,
the evidence of record prior to November 5, 2007, is not
found to most nearly approximate the criteria for a 70
percent evaluation but rather is appropriately reflected
by the already-assigned 50 percent rating for that period
of time.
Further supporting the increase to 70 percent from
November 5, 2007, is a May 2008 letter from the Veteran's
VA psychiatrist. This correspondence stated that the
Veteran's PTSD symptoms had worsened, particularly with
respect to his sleep, mood, concentration and isolation.
Moreover, at his January 2009 VA examination, the Veteran
reported nightmares every night, as well as daily
intrusive thoughts. Upon examination, the Veteran was
oriented to person and place, but was disoriented with
respect to time; e.g., he could not give the correct date,
year, current president, or governor. Further, the
Veteran reported both suicidal and homicidal ideations,
but denied any intent. The examiner concluded that
symptoms occurred daily, and were severe, but did not
preclude employment.
The January 2009 VA examination did not reveal evidence of
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly
inappropriate behavior; persistent danger of hurting
himself or others; intermittent inability to perform
activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or
place; memory loss for names of close relatives, own
occupation, or own name. Moreover, no other competent
evidence of record demonstrated such symptomatology for
any portion of the rating period on appeal.
GAF scores were assigned in November 2003 (45), August
2005 (46), and January 2009 (43). However, GAF scores
alone do not provide a basis for the assignment of a
higher disability rating for PTSD. According to the
Fourth Edition of American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV), a GAF score is a scale reflecting psychological,
social, and occupational functioning on a hypothetical
continuum of mental-health illnesses. The GAF score and
the interpretation of the score are important
considerations in rating a psychiatric disability. See,
e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996);
Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF score
assigned in a case, like an examiner's assessment of the
severity of a condition, is not dispositive of the
percentage rating issue; rather, it must be considered in
light of the actual symptoms of a psychiatric disorder
(which provide the primary basis for the rating assigned).
See 38 C.F.R. § 4.126(a).
GAF scores between 41 and 50 are indicative of serious
symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment
in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).
Regarding the period prior to November 2007, the Board
notes that while GAF scores of 45 and 46 indicated severe
symptoms, after a careful review of the entire record, the
Veteran has not been found to have manifested symptoms
typically considered indicative of the level of impairment
to warrant a 70 percent rating, to include: obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control; spatial disorientation; or
neglect of personal appearance or hygiene. While the
Veteran did exhibit some symptoms associated with a 70
percent rating such as difficulty with maintaining
relationships, and isolation, the overall disability
picture is more analogous to that contemplated by the 50
percent rating. Thus, the criteria for the next higher 70
percent rating have not been met prior to November 5,
2007.
Regarding the period after November 5, 2007, while a GAF
score of 43 indicated severe symptoms, the Board finds
that the Veteran has not manifested symptoms typically
considered indicative of the level of impairment to
warrant a 100 percent rating, to include: gross
impairment in thought processes or communication;
persistent delusions or hallucinations; grossly
inappropriate behavior; persistent danger of hurting
himself or others; intermittent inability to perform
activities of daily living; memory loss for names of close
relatives, own occupation, or own name. While the Veteran
did exhibit some symptoms associated with a 100 percent
rating such as disorientation to time, the overall
disability picture is more analogous to that contemplated
by the 70 percent rating. Thus, the criteria for the next
higher 100 percent rating have not been met for any
portion of the rating period on appeal.
In sum, prior to November 5, 2007, the evidence does not
warrant an initial rating in excess of 50 percent. From
November 5, 2007, a 70 percent evaluation, but no higher,
is warranted. As the preponderance of the evidence is
against the claim, the benefit of the doubt rule is not
applicable. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 54-56 (1990).
The Board has also considered whether an Extraschedular
evaluation should be assigned in this case. The threshold
factor for extraschedular consideration is a finding that
the evidence before VA presents such an exceptional
disability picture that the available schedular
evaluations for that service-connected disability are
inadequate. Therefore, initially, there must be a
comparison between the level of severity and
symptomatology of the claimant's service-connected
disability with the established criteria found in the
rating schedule for that disability. If the criteria
reasonably describe the claimant's disability level and
symptomatology, then the claimant's disability picture is
contemplated by the rating schedule, the assigned
schedular evaluation is, therefore, adequate, and no
referral is required. Thun v. Shinseki, F.3d 1366 (Fed.
Cir. 2009).
Here, as discussed above, the rating criteria for the
disability at issue reasonably describe the Veteran's
disability level and symptomatology. Thus, as the
Veteran's disability picture is contemplated by the rating
schedule, the assigned schedular evaluation is adequate,
and no referral for an extraschedular evaluation is
required. Id.
Finally, the Board notes that the record does not reflect
complaints that the Veteran's service-connected PTSD has
resulted in interference with employment. Therefore, a
referral of a claim for a total rating due to individual
unemployability (TDIU) is not necessary under the Court's
ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009).
ORDER
An initial rating in excess of 50 percent for PTSD prior
to November 5, 2007, is denied.
Entitlement to an evaluation of 70 percent, but no more,
for PTSD from November 5, 2007, is granted, subject to the
regulations applicable to the payment of monetary
benefits.
____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs